Written for Property Poser

A reader has approached our Property Poser experts with a query regarding outstanding repairs on a property he has been renting for over a year.

The reader writes that he and his wife took occupation in May last year, at which time the landlord undertook to complete certain repairs within three weeks. More than a year later, there are still problems that need to be repaired.

Among them are damages to the roof and ceiling caused by a major leak following heavy rains in November.

The reader reports that the landlord’s insurer paid the associated claim but that the landlord failed to make the necessary repairs, despite undertaking to complete them by December.

Earlier this year, a leak in the main bedroom was handled, on the landlord’s advice, by placing a bucket beneath it. The leak had been there from the inception of the lease but a few coats of paint had obscured it.

To make matters worse, there is apparently also a damp problem in the second bedroom.

The reader would like to know if he can withhold rental or what other remedies he has at his disposal.

The Rental Housing Act applies in the current situation, says Schalk van der Merwe from Rawson Properties Helderberg in Cape Town.

“The Act provides that the landlord and tenant should jointly inspect the property before occupation.”

Van der Merwe says the purpose of this is to identify and determine the extent of any aspects requiring repair or to ensure that any defects are listed in an annexure to the lease, so that the tenant is not later accused of causing the damage.

“Our reader and the landlord seem to have carried out such an inspection but the landlord appears to have reneged on his undertaking to carry out the identified repairs.”

Although the reader has not mentioned whether there is a written lease in place, the Act makes provision for certain aspects of the parties’ relationship to be put in writing in the agreement, says Van der Merwe.

“The Act also provides that the obligations of both parties should be recorded and this is where one would expect to find the agreed manner for dealing with any problems that arise.”

According to Sean Radue of Radue Attorneys in Port Elizabeth, the landlord’s conduct from the inception of the lease – that is, identifying problems and failing to repair them – would arguably constitute an unfair practice under the Act.

Radue says the Act describes an unfair practice as “… any act or omission by a landlord in contravention of this Act; or a practice prescribed as a practice unreasonably prejudicing the rights or interests of a landlord or tenant”.

“This is detailed more fully in the Unfair Practices Regulations to the Act.”

Under these regulations, the landlord has various obligations relating to the maintenance and upkeep, as well as repair and refurbishment of the residence, says Radue.

“Repairs identified as being the responsibility of the landlord should be completed within 14 days or an extended period as the parties may agree.”

Radue says an unfair practice can be addressed by the relevant provincial Rental Housing Tribunal as prescribed by the Act following a complaint.

“However, our reader withholding rental payments could likewise be viewed as an unfair practice and could also be addressed by the Tribunal on a complaint by the landlord.”

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